5.  Eğitim-Sen, the Education and Science Workers’ Union (“the union”) was formed in Ankara on 13 January 1995. According to the information it has provided, the union has 167,000 members with 90 branches and is present in 430 towns and cities. It is affiliated to the KESK (Kamu Emekçileri Sendikaları Konfederasyonu – the Confederation of Public Sector Workers’ Union), which is a member of Education International.
6.  On 15 September 2001 the union amended Article 2 (b) of its constitution to read as follows:
“[Eğitim-Sen] defends the right of all individuals in society to receive, with equality and freedom, a democratic, secular, scientific and cost-free education in their mother tongue.”
7.  On 15 February 2002 the Governor of Ankara requested the applicant union to delete the words “their mother tongue” from its constitution on the ground that they were in breach of Articles 3 and 42 of the Constitution and of sections 1 and 20 of Law no. 4688 on public servants’ unions.
8.  The applicant union informed the Governor that it was too busy but that it undertook to amend its constitution by 30 June 2002.
9.  On 29 March 2002, under section 37 of Law no. 4688, the Governor of Ankara requested the public prosecutor of Ankara to bring an action for dissolution against the applicant union on the ground that it had not carried out the requisite amendment of Article 2 (b) of its constitution.
10.  On 3 July 2002 the applicant union amended Article 2 (b) of its constitution to read as follows:
“[Eğitim-Sen] defends the right of all individuals in society to receive education in their mother tongue and to benefit from the development of their culture.”
11.  On 16 July 2002 the public prosecutor gave a decision discontinuing the dissolution proceedings initiated by the Governor, on grounds of insufficient evidence and incriminating factors. In his decision the public prosecutor indicated, firstly, that the applicant union had amended Article 2 (b) of its constitution, which now provided that individuals should “receive education in their mother tongue”; he further stated that the matter was being discussed in some depth both publicly and in political parties and that it would be tabled for debate in Parliament. He concluded that, in those circumstances, it was not appropriate to bring dissolution proceedings against the applicant union or criminal proceedings against the members of its board.
12.  On 15 October 2002 the Ministry of Labour and Social Security (“the Ministry”) informed the applicant union that, following the examination of its constitution, as amended on 3 July 2002 to comply with the relevant provisions of Law no. 4688, it had been concluded that the impugned Article was no longer in breach of the law.
13.  On 27 June 2003 the Office of the Chief of Staff of the armed forces requested the Ministry to take the necessary measures against the applicant union on the ground that Article 2 (b) of its constitution, as amended on 3 July 2002, was in breach of Articles 3 and 42 of the Constitution.
14.  On 15 July 2003 the Ministry requested the Governor of Ankara to examine the provisions of Article 2 (b) of the applicant union’s constitution in the light of section 6 of Law no. 4688.
15.  On 28 October 2003 the Governor of Ankara requested the applicant union to delete the words “receive education in their mother tongue” from Article 2 (b) of its constitution.
16.  On 12 April 2004 the Governor of Ankara, referring to the provisions of Article 2 (b) of the applicant union’s constitution and summing up the first set of proceedings against it, applied to the public prosecutor of Ankara to initiate fresh dissolution proceedings. The Governor explained that, even though Law no. 2923 of 14 October 1983 provided for the teaching of a number of languages and dialects, Article 2 of the applicant union’s constitution, in so far as it provided for education in a language other than Turkish, was in breach of that Law.
17.  On 10 July 2004 the public prosecutor of Ankara brought proceedings against the seven members of the executive board of Eğitim‑Sen. In the context of that action, the prosecutor further requested the dissolution of the applicant union under section 37 of Law no. 4688 on the ground that the union had not deleted the impugned wording from its constitution.
18.  The Ankara Employment Tribunal assumed jurisdiction to rule on the application for the dissolution of the applicant union pursuant to Law no. 4688.
19.  On 13 July 2004 the Ankara Employment Tribunal, applying section 6 of Law no. 4688, granted the applicant union a period of sixty days to amend the impugned provisions of its constitution.
20.  In a judgment of 15 September 2004, the Ankara Employment Tribunal dismissed the application for dissolution. In its reasoning it indicated in particular that the relevant Articles of Eğitim-Sen’s constitution did not jeopardise (tehlike) territorial, national or State unity or the existing borders of the Republic of Turkey. It did not find that the union had committed any unlawful action capable of suggesting that the provisions of the impugned Article of Eğitim-Sen’s constitution would be used by those opposed to the unity of the Republic of Turkey. Based on Article 90 of the Constitution and Articles 10 and 11 of the Convention, the tribunal also gave its own interpretation of Articles 10 and 11. It explained in this connection that freedom of expression constituted the basis of a democratic and pluralistic society, and that such freedom was a necessary condition for the progression of democratic societies and the personal development of each individual. It emphasised that, without such freedom, there was no democracy. It concluded that the provisions of Article 2 (b) of Eğitim-Sen’s constitution were not in breach of Articles 10 and 11 of the Convention. It further indicated that section 6(8) of Law no. 4688 – which granted sixty days to a union to comply with the law – should be interpreted in the light of the purpose of that Law. According to the tribunal, even if the union had not complied with the law within the time allowed, it was still for the tribunal to examine whether the application was well-founded and to rule on the merits of the case.
21.  On 29 September 2004 the public prosecutor appealed on points of law.
22.  In a judgment of 3 November 2004, the Court of Cassation overturned the judgment of 15 September 2004 on the ground that the Ankara Employment Tribunal had not correctly applied section 6(8) of Law no. 4688. It took the view that this section did not allow for any latitude of interpretation and that the dissolution of the union was mandatory where it had not complied with the provisions of the Law within a period of sixty days. It therefore concluded that Eğitim-Sen had to be dissolved, as it had not complied with the law within the time allowed to it by the Governor and the tribunal.
23.  In a judgment of 21 February 2005, the Ankara Employment Tribunal, contrary to the Court of Cassation’s judgment of 3 November 2004, reiterated its original findings. It referred back to the legal reasoning used in its judgment of 15 September 2004 and invoked the Strasbourg case-law on the dissolution of political parties, in particular the cases concerning the United Communist Party of Turkey and the Freedom and Democracy Party (ÖZDEP). It further observed that the official language of the Republic of Turkey was Turkish and that, according to Article 66 of the Constitution, any individual attached to the Republic by citizenship was Turkish. In its view, the fact of learning a language other than the official language did not constitute an action or conduct in breach of the law, but such conduct was proof of an attachment to the State of Turkey. Whilst agreeing that the official language was Turkish and that there could not be any other official language, it found that there should not be any particular impediment to the learning of other languages. Referring to its previous reasoning, based on Articles 10 and 11 of the Convention, the tribunal found that there were two main grounds for the dissolution of a union, an association or a political party, namely “an imminent threat” and “the criterion of violence”. It observed that the union whose dissolution was sought defended in its constitution the principle of education in one’s own mother tongue and the development of culture. It emphasised that, even supposing that the wording in question was illegal, the content and weight of the terms did not constitute an imminent threat or an incitement to violence and their inclusion in the union’s constitution did not jeopardise territorial, national or State unity or the existing borders of the Republic of Turkey. It found, on the contrary, that the decision not to dissolve the union would have the effect of calming the social tension, disorder and antagonism that were prevalent in society, and of restoring social peace.
24.  In a judgment of 22 May 2005, the combined divisions of the Court of Cassation (Yargıtay Hukuk Genel Kurulu) quashed by a majority the judgment of the court below. In its reasoning the court indicated that Articles 10 and 11 of the Convention provided for statutory limitations to the exercise of the freedoms of expression, assembly and association and that they notably stipulated that such restrictions had to be necessary in a democratic society. It was therefore the court’s task to verify whether the restrictions imposed by domestic law on fundamental rights and freedoms were consistent with Turkey’s international commitments. The court took the view that the union’s call for education in a mother tongue other than Turkish was in breach of Articles 3 and 42 of the Constitution and that it ran counter to the acceptance of a unitary State and to the existing legal system. In the court’s opinion, the right to form a union could thus be limited and such restrictions were necessary in a democratic society. The combined divisions of the Court of Cassation concluded that the defence of education in a mother tongue other than Turkish could not rely on Articles 10 and 11 of the Convention.
25.  In their dissenting opinion, some of the members of the combined divisions of the Court of Cassation, relying on section 6 of Law no. 4688, observed that, according to the conclusion of the court below, the impugned provisions of the union’s constitution were compliant with the law. The dissenting judges were of the view that, as a result, there had been no legal basis on which to order the union to amend its constitution within sixty days. They stated that the judgment had to be quashed to enable the court below to comply with section 6 of Law no. 4688 and not for the purpose of having the union dissolved.
26.  On 3 July 2005 the applicant union amended the offending part of Article 2 (b) of its constitution to read as follows:
“[Eğitim-Sen] defends, in the context of human rights and fundamental freedoms, the right of all individuals in society to receive a democratic, secular, scientific and cost-free education.”
27.  In a judgment of 27 October 2005, the Ankara Employment Tribunal, taking note of the amendment to the union’s constitution, found that there was no longer any reason to rule on the dissolution of the union, since the material elements that had given rise to the action no longer existed.